10/21/2005 06:04 pm ET Updated May 25, 2011

Lotto Trouble

The politics of the Harriet Miers nomination are getting stranger as attention turns toward Ms. Miers's tenure as head of the Texas Lottery Commission. Two key players in last year's presidential campaign--Jerome Corsi, co-author of the Swift Boat Veterans book "Unfit for Command," and Ben Barnes, a former Texas lieutenant governor who claimed President Bush got special treatment when he joined the Texas Air National Guard--are involved in the debate.

In a plot twist worthy of "Dallas," Mr. Barnes is effectively siding with President Bush's appointee, while Mr. Corsi is opposed. Mr. Corsi has written a half dozen Internet stories on the Lottery Commission scandal, while Mr. Barnes is calling the offices of Democrats on the Judiciary Committee and urging them not to question Ms. Miers about the Lottery Commission because it will prove embarrassing to him and other Texas Democrats.

Since President Bush passed over many legal stars to appoint his Texas friend, the battle over the Miers nomination will largely be fought over side issues--among them whether the Judiciary Committee will attempt to resurrect old Bush scandals from Texas by subpoenaing the director of the Texas Lottery Commission whom Ms. Miers fired. A spokesman for Sen. Pat Leahy, the ranking Democrat on the Judiciary Committee, says he plans to explore all aspects of Ms. Miers's career, including her tenure at the Lottery Commission from 1995 to 2000.

The New York Sun has reported that Lawrence Littwin, a former executive director of the Lottery Commission, is eager to testify should the Senate subpoena him. Mr. Littwin claims that in 1997 Ms. Miers fired him after five months on the job because she was protecting GTECH, the controversial Rhode Island firm managing the lottery. GTECH had been mired in controversy for years, and in 1996 David Smith, its national sales director, was convicted in New Jersey in a kickback scheme involving a lobbyist.

Mr. Littwin has alleged that aides to then-Gov. Bush were worried that should GTECH lose its lottery contract, its top lobbyist, Mr. Barnes, would discuss efforts he claimed to have made to push a young George W. Bush to the top of the coveted waiting list for a pilot's slot in the Texas Air National Guard. (Mr. Barnes went public with those claims last year in an interview with CBS's "60 Minutes.") Lottery Commission officials, including Ms. Miers, never detailed the reasons for the Littwin firing. Last week, when the Houston Chronicle asked about it, the White House replied, "Harriet Miers has never commented and will not now on what was a personnel matter."

After his firing, Mr. Littwin sued GTECH, claiming it had helped him lose his job. He focused much of his discovery efforts on Mr. Barnes, who had two lucrative contracts with GTECH that brought him $3 million a year. In 1997, when GTECH let Mr. Barnes go amid the growing lottery scandal, he received a $23 million severance package. As part of the Littwin lawsuit, Mr. Barnes gave a deposition in 1999 in which he first told his story that Houston businessman Sidney Adger, a Bush family friend who died in 1996, had approached him to secure a National Guard slot for Mr. Bush.

Mr. Littwin sought to depose Ms. Miers, but a federal magistrate quashed that attempt. Shortly after that, GTECH agreed to pay Mr. Littwin $300,000 in exchange for a confidentiality agreement under which the Barnes deposition and other documents would be destroyed and Mr. Littwin wouldn't discuss the case In public. Mr. Littwin isn't talking to reporters, but he told the New York Sun if the Senate calls, "I'm coming, if they subpoena me." That would release him from his confidentiality agreement. Senate staffers from both parties confirm they have discussed bringing Mr. Littwin to Washington to ask for his testimony on the Lottery Commission.

Former aides to then-Gov. Bush say the Littwin story is dramatically overheated. They claim he was fired because as lottery director he launched his own investigation into whether GTECH had improperly landed the lottery contract through influence peddling. "Many people felt it inappropriate for a state employee like Littwin to check on political activity by GTECH and draw inferences," says Reggie Bashur, a former deputy chief of staff to then-Gov. Bush who was himself a lobbyist for GTECH from 1996 to 2003. Mr. Bashur notes that four months after Mr. Littwin's firing, Linda Cloud, the lottery's new executive director, ended the competitive bidding process, saying "it is in the best interest of the state" to keep GTECH's contract. But others say there might have been more to the commission's decision to drop efforts to put the lottery contract out for competitive bid. A top Republican official in Texas confirmed to me that a top aide to Gov. Bush put extreme pressure on him to stop his support of competitive bidding at the lottery.

At the time, Mr. Bush himself expressed irritation with Mr. Littwin. "I don't think any of us understand what [Mr. Littwin] was doing," he told the Dallas Morning News in 1997. "If in fact he was gathering data to try to embarrass a member of the House or Senate or executive branch, it's inappropriate behavior."

The Littwin controversy has spawned feverish conspiracy theories, many stemming from a 1997 anonymous note sent to then-U.S. Attorney Dan Mills. The note, excerpts from which were published in the weekly Dallas Observer this week, claimed that "Bashur was sent to talk to Barnes who agreed never to confirm the story" about the Texas Air National Guard and that "the Governor talked to the Chair of the Lottery [Ms. Miers] two days later and she then agreed to support letting Gtech keep the contract without a bid." Mr. Bashur said the note stirred up a lot of controversy back then but was "nonsense" and has never been substantiated. But that note may be making a comeback now that Democrats are exploring Ms. Miers's career before she went to the Bush White House.

Mr. Barnes, however, is urging Democratic senators not to take their questioning there. In 1997, the Providence Journal-Bulletin reported that after the conviction of GTECH national sales director David Smith, "in a sentencing memo that was posted briefly on the Internet, a federal prosecutor accused Smith of engineering kickback schemes in four states, including Texas, where he allegedly received $508,945 in illegal payments from former Lt. Gov. Ben Barnes." The prosecutor's office later apologized for making the memo public but never retracted it.

If Democrats seek to subpoena Mr. Littwin, they will put Republicans in a fix. GOP senators can use their committee majority to block any subpoena but would come under withering fire over accusations they were aiding a coverup of Ms. Miers's days at the Lottery Commission. If Republicans go along with a subpoena, the hearings become a circus.

Mr. Barnes did not return my phone calls, but he has told columnist Robert Novak that there is "absolutely nothing" to suggestions his $23 million severance was linked to his silence in the Texas Air National Guard issue. He has told friends that he has never even met Harriet Miers. Mr. Bashur is skeptical that Democrats actually will move to subpoena Mr. Littwin, "because Republicans could demand testimony from Barnes, who Senate Democrats value as such a good fund-raiser for them, that they refer to him as the 51st senator."

The bizarre maneuverings behind the Miers nomination threaten to take the confirmation hearings far afield from a discussion of constitutional law and judicial philosophy. "President Bush has called in artillery fire on his own position by nominating Harriet Miers," says Mr. Corsi, the Swift Book co-author who is pumping out a story a day on the issue at "I believe, sadly, that there is an embarrassing story surrounding Ms. Miers and the Lottery Commission," he told me. "There are too many unanswered questions, and I fear that GOP Senators will be left flying blind by a tight-lipped White House on the issue." Even though Mr. Bashur doesn't believe Mr. Littwin is credible, Mr. Bashur admits that should he testify "he will make big news" with "a series of wild allegations."

Despite all of these minefields and doubts about her qualifications, some Washington observers still believe Ms. Miers will be confirmed. "There are only two ways that she loses," says Fred Barnes of The Weekly Standard. "One is if some GOP Senators go see Karl Rove, and then President Bush, and say she's just too much weight to carry. The other is if safe Democratic senators embarrass her by asking tough questions that stump her."

But another possibility is that both political parties' desire not to turn up old scandals--whether they be the Lottery Commission or who exactly did fake those Air National Guard memos that appeared in the same "60 Minutes" segment as Ben Barnes--prompts senators to suggest privately to Mr. Bush that Ms. Miers withdraw. It's a cliché, but doubly true in this case, that politics makes strange bedfellows.